Nichols v. Sabzwari

Linda Nichols, Plaintiff,v.Dr. Aleena Sabzwari; Little River Dental Center; and the United States of America, Defendants.

REPORT AND RECOMMENDATION

Kaymani D. West, United States Magistrate Judge

Plaintiff
filed this action in state court bringing a common-law cause
of action against Defendants for damages she allegedly
sustained as a result of teeth that were extracted during an
April 3, 2017 dental appointment. Comp., ECF No. 1-1; Horry
Cnty. Magistrate's Court No. 2017-CV-261030363. Defendant
United States of America (“USA”) removed this
action on June 21, 2017, on grounds that this court has
subject-matter jurisdiction pursuant to 28 U.S.C. §
1442(a)(1), 1446, and 42 U.S.C. § 233(c). 28 U.S.C.
§ 1442(a)(1) provides for removal of a civil action
commenced in a State court against “[a]ny officer of
the United States, for or relating to any act under color of
office or in the performance of his duties. . . .”
Notice of Removal, ECF No. 1. In the Removal Notice,
Defendant USA represents that Dr. Aleena Sabzwari is employed
as a dentist at the Little River Dental Center and is an
agent or employee of the USA. Id. at 2. Further,
Defendant USA represents that the Dental Center is an entity
covered under 42 U.S.C. § 233 because it receives grant
money from the United States Public Health Services.
Id. Defendant USA represents that “the
exclusive remedy for negligence claims against a health care
center under the Federally Supported Heath Centers Assistance
Act is against the United States of America pursuant to the
Federal Tort Claims Act [“FTCA”].”
Id. at ¶ 5.

I.
Background

After
this case was removed, Plaintiff amended her Complaint. ECF
No. 18. There, she alleged the following, verbatim,
allegations took place under her “Statement of
Claim” section:

1. Failure to obtain informed consent prior to performing a
dental procedure. The defendant negligently broke a tooth off
from the root while extracting the tooth, then performed a
dental procedure in an infected area that included shaving
down the plaintiff's jaw bone to expose the root left in
after the extraction of a healthy tooth. A competent dentist
would obtain permission prior to performing a dental
procedure that consist of sawing into a patient's jaw
bone.

Her failure to obtain consent from the plaintiff to shave the
bone was a clear deviation from the dental standard of care
in the community. The deviation from the standard of care
caused the plaintiff damages that consist of unnecessarily
suffered pain and discomfort and additional emergency
treatment and cost.

2. Indicated dental procedure was not performed The plaintiff
relied on the defendant to make a professional decision of
the best treatment available to save her teeth. The defendant
led the plaintiff to believe that extraction was the only
treatment available. The defendant failed to recommend any
dental procedure to save the teeth. Her failure to indicate a
dental procedure to save the teeth was a clear deviation from
the dental standard of care in the community. The deviation
from the standard of care caused the plaintiff damages that
consist of unnecessarily suffered pain and discomfort and
additional emergency treatment and cost.

3. Contraindicated dental procedure was performed The
defendant performed a contraindication procedure by removing
healthy teeth and neglecting to perform the correct
procedures to treat the teeth. One tooth had a small cavity,
and the other tooth had no signs of decay. The defendant
tested both teeth to heat and cold. Both teeth were strong
and not sensitive to heat or cold. A competent dentist would
have not extracted a healthy tooth.

Her failure to recommend procedures to save the teeth was a
clear deviation from the dental standard of care in the
community. The deviation from the standard of care caused the
plaintiff damages that consist of unnecessarily suffered pain
and discomfort and additional emergency treatment and cost.

4. Wrongfully administered pain relief The defendant
improperly provided enough pain relief to numb the gum area
before extraction. The defendant willfully continued to
extract tooth after the plaintiff complained of pain. A
competent dentist would have ensured that the patient had
some level of comfort from pain before proceeding to extract
the tooth.

Her failure to provide pain relief was a clear deviation from
the dental standard of care in the community. The deviation
from the standard of care caused the plaintiff damages that
consist of unnecessarily suffered pain and discomfort and
additional emergency treatment.

5. Mistreated Infection

After x-ray and examination, the defendant found a small
infected area between 2 teeth and proceeded to recommend
extraction of both teeth. The defendant used a saw in an
infected area to shave the jaw bone to expose the broken off
root and failed to close the area with stitches. A competent
dentist would not have used a saw in an infected area. A
competent dentist would take x-rays to locate the broken off
root, manage the pain for the patient, extract the root and
stitched the opened area instead of leaving the area open to
avoid infection in the patient's blood stream. Her
failure to do so was a clear deviation from the dental
standard of care in the community. The deviation from the
standard of care caused the plaintiff damages that consist of
the spread of the infection and unnecessarily suffered pain
and discomfort from a dry socket and additional emergency
treatment and costs.

6. Unwarranted delay in treatment The defendant referred the
plaintiff to a dental surgeon 30 miles away and failed to
make an emergency appointment after she negligently broke the
tooth off and left the root intact. The defendant shaved the
jaw bone down to expose the root, then left the area open and
vulnerable to infection. A competent dentist would have
referred the plaintiff to a more experienced dentist in the
Little River Dental Center and ensured that the gum was
stitched and not acceptable to infection before leaving the
facility. Her failure to do so was a clear deviation from the
dental standard of care in the community. The deviation from
the standard of care caused ...

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